People v. Laskowski
| Decision Date | 04 April 1997 |
| Docket Number | No. 4-96-0677,4-96-0677 |
| Citation | 287 Ill.App.3d 539,678 N.E.2d 1241,223 Ill.Dec. 110 |
| Parties | , 223 Ill.Dec. 110 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jesse Earl LASKOWSKI, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
William A. Yoder, John W. Yoder Law Firm, Bloomington, for Jesse Laskowski.
William G. Workman, State's Attorney, Lincoln, Norbert J. Goetten, Director, State's Attorneys Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, State's Attorneys Appellate Prosecutor, Springfield (Solveig L. Wolf, of counsel, State's Attorneys Appellate Prosecutor), Springfield, for People.
Following a bench trial in the circuit court of Logan County, defendant Jesse Earl Laskowski was found guilty of driving while under the influence of alcohol (DUI), which the trial court found to be enhanced to aggravated driving under the influence of alcohol. 625 ILCS 5/11-501(d)(1)(A) (West 1994). Defendant was sentenced to 30 months' probation and 60 consecutive Sundays of periodic imprisonment. As part of his sentence, he was ordered to pay a $1,000 fine plus $295 court costs, and refrain from the use of drugs or alcohol during probation, undergo alcohol counseling, and follow the counselor's recommendations. On appeal, defendant argues his sentence should be reversed because the State failed to prove by competent evidence the prior convictions used to enhance his sentence in this case. We affirm.
It placed defendant on notice of the State's intention to seek an enhanced sentence. Aggravated DUI is a Class 4 felony. 625 ILCS 5/11-501(d)(2) (West 1994). Generally, DUI is a Class A misdemeanor. 625 ILCS 5/11-501(c) (West 1994).
Section 11-501(d)(1) of the Illinois Vehicle Code involves the increase in the classification of an offense to seek an enhanced sentence, thus requiring compliance with section 111-3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c) (West 1994)). People v. Sheehan, 168 Ill.2d 298, 303-04, 213 Ill.Dec. 692, 694-95, 659 N.E.2d 1339, 1341-42 (1995). Under section 111-3(c) of the Code, evidence of the prior commission of two or more DUIs need not be proved by the State as an element of the offense of aggravated DUI. 725 ILCS 5/111-3(c) (West 1994). See People v. Bowman, 221 Ill.App.3d 663, 666, 164 Ill.Dec. 560, 562, 583 N.E.2d 114, 116 (1991).
At the sentencing hearing in this case, the trial court considered the presentence investigation report, which referred to the following prior convictions for driving while intoxicated (DWI) under predecessor statutes:
Case No. Date of Date of Disposition
Offense Disposition
McLean County case No. 8/13/68 Unavailable $100 fine, plus costs
68"5768
McLean County case No. 10/31/68 Unavailable 7 days in jail, plus costs
68"8207
Tazewell County case 6/20/69 7/18/69 7 days in jail, "amended"
No. 69"TR" 4681 July 31, 1969 to 12 days
in jail
McLean County case No. 1/18/71 Unavailable 31 days in jail, $250
71"0406 fine, plus costs
----------
At the time of these prior convictions, DWI was a misdemeanor. See, e.g., Ill.Rev.Stat.1967, ch. 95 1/2, par. 144(c); Ill.Rev.Stat.1967, ch. 95 1/2, par. 144(i); Ill.Rev.Stat.1967, ch. 38, par. 2-11; Ill.Rev.Stat.1967, ch. 38, par. 2-7.
Defendant objected to the consideration of these prior offenses listed in the presentence report and to the form of the State's exhibits offered to establish the prior commission of these offenses. People's exhibit No. 1 included the certificate of Pam Gardner, clerk of the circuit court of Tazewell County, indicating that, in Tazewell County case No. 69-TR-4681, involving "DWI," defendant was sentenced to 30 days in jail on July 18, 1969, but that order was set aside, and on July 31, 1969, he was sentenced to 12 days in jail. Gardner's affidavit indicated the official records of this traffic case were destroyed, without copies being retained, pursuant to permission from the Administrative Office of the Illinois Courts, in accordance with the Uniform Manual on Recordkeeping adopted by the Supreme Court of Illinois. Administrative Office of the Illinois Courts, Manual on Recordkeeping, § 4000 et seq., at 70 (1972).
Similarly, in People's exhibit No. 2, Sandra K. Parker, clerk of the circuit court of McLean County, advised she was unable to produce copies of the defendant's McLean County convictions. However, she did certify copies of pages of the McLean County circuit court Traffic Fee Book indicating payments made by defendant in McLean County case Nos. 68-5768, 68-8207, and 71-0406, all having notations of "D.W.I."
People's exhibit No. 3 was a printout of defendant's driving record prepared by the Secretary of State's Office. That document referred to convictions for DWI on (1) September 12, 1968, following an arrest on August 13, 1968; (2) December 9, 1968, following an arrest on October 31, 1968; (3) July 18, 1969, following an arrest on June 20, 1969; and (4) January 18, 1971, following an arrest on January 16, 1971.
Defendant argues that these exhibits are insufficient because they nowhere indicate whether defendant was afforded counsel or waived counsel in the prior cases. The enhancing event for DUI is not prior "convictions,"," but prior "commissions" of the offense. Sheehan, 168 Ill.2d at 303-09, 213 Ill.Dec. at 694-97, 659 N.E.2d at 1341-44; People v. Tinkham, 266 Ill.App.3d 391, 396, 203 Ill.Dec. 358, 361, 639 N.E.2d 917, 920 (1994); People v. Lambert, 249 Ill.App.3d 726, 729-30, 188 Ill.Dec. 909, 911, 619 N.E.2d 534, 536 (1993); People v. Winkler, 248 Ill.App.3d 954, 957, 188 Ill.Dec. 91, 92-93, 618 N.E.2d 661, 662-63 (1993). As a result, the exhibits must be analyzed to determine whether they establish a prior commission, not a prior conviction.
The documents submitted by the State are sufficient to establish the commission of the DUIs. Just as an order of suspension is an indication of the commission of the offense, though not a conviction, the payment of fees and fines by defendant in the McLean County cases is an acknowledgement of the commission of those offenses, even though a certified copy of the record of conviction was not submitted by the State. This case involves a question of what is the best evidence of the prior commission. Although submitting certified copies of records of conviction is one method of proving prior commission (see People v. Robinson, 167 Ill.2d 53, 75-76, 212 Ill.Dec. 256, 266, 656 N.E.2d 1090, 1100 (1995)), it is not the only method (see People v. Davis, 65 Ill.2d 157, 164, 2 Ill.Dec. 572, 575-76, 357 N.E.2d 792, 795-96 (1976)), particularly where those records have been destroyed in the ordinary course of court business. Informal presentation of defendant's prior record is not erroneous per se. People v. Hurst, 42 Ill.2d 217, 222, 247 N.E.2d 614, 618 (1969). At sentencing, the State need not prove the prior commissions of DUI beyond a reasonable doubt, and the trial court may consider any relevant and reliable evidence, taking care to ensure the accuracy of information and to shield itself from the prejudicial effect of improper material. People v. Williams, 149 Ill.2d 467, 490-92, 174 Ill.Dec. 829, 840, 599 N.E.2d 913, 924 (1992); People v. Yeast, 236 Ill.App.3d 84, 92, 176 Ill.Dec. 669, 674, 601 N.E.2d 1367, 1372 (1992).
In this case, defendant has never asserted he was not represented by counsel or did not waive counsel in the prior proceedings. Instead, defendant argues that the State failed to prove representation by counsel or waiver. We agree with the State's argument that unless defendant offers some evidence to affirmatively raise the question of whether he was not represented by counsel and did not waive counsel at the time of the prior convictions, defendant cannot shift the burden to the State to prove representation or waiver. In essence, the State has presented its evidence in aggravation and the defendant has done nothing to call its reliability into question except to argue its insufficiency.
In People v. Finley, 209 Ill.App.3d 968, 972, 154 Ill.Dec. 412, 414, 568 N.E.2d 412, 414 (1991), defendant filed an affidavit stating he could not afford to have counsel for the prior case and he was informed he had no right to counsel and none would be appointed since the State was not seeking a jail term. No such affidavit was presented in this case. Nor did defendant testify at sentencing that he was uncounseled at the prior proceedings and did not waive his right to counsel. To the extent that Finley can be read to place an affirmative burden on the State to demonstrate representation or waiver of counsel in the prior cases, even without any evidence by defendant, we decline to follow it. The failure of defendant to make any affirmative statement cannot only be deemed a waiver of the issue, but may be considered by the trial court as creating an inference that either defendant was represented by counsel at...
To continue reading
Request your trial
-
People v. Anderson
...allegations" and yet he never challenged the prior conviction until after he was sentenced. Moreover, citing People v. Laskowski , 287 Ill. App. 3d 539, 543, 223 Ill.Dec. 110, 678 N.E.2d 1241 (1997), the court found that defendant must present "some evidence to affirmatively raise the quest......
-
People v. Robinson
...defendant. This was error. Prior DUI violations are not an element of an aggravated DUI charge. People v. Laskowski, 287 Ill.App.3d 539, 541, 223 Ill.Dec. 110, 678 N.E.2d 1241 (1997). The admission at trial of evidence of defendant's two prior DUI violations, which were only "factors in agg......
- Evergreen Investments, LLC v. Fcl Graphics, Inc.
- Cincinnati Ins. Co. v. RIVER CITY CONST.